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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MUSA IKHARO, 

Petitioner, Case No. 2:12-cv-00489 

JUDGE GREGORY L. FROST 

v. Magistrate Judge Elizabeth Preston Deavers 

MIKE DEWINE, 

ATTORNEY GENERAL, 

Respondent.

OPINION AND ORDER

 In this action, Petitioner Musa Ikharo filed a petition for a writ of habeas corpus pursuant 

to 28 U.S.C. ' 2254. On June 11, 2013, the Magistrate Judge issued a Report and 

Recommendation (ECF No. 23) recommending that Respondent Mark DeWine’s Motion to 

Dismiss (ECF No. 13) and Supplemental Motion to Dismiss for Lack of Jurisdiction (ECF No. 

16) be granted and that Ikharo’s petition for a writ of habeas corpus be dismissed. Ikharo has 

filed objections to the Report and Recommendation (ECF No. 25) and a Supplementary 

Reminder or Judicial Notice (ECF No. 27), in which he also asks the Court to issue an order 

“mandating” that the trial court produce “certified trial court records” pertinent to his petition for 

a writ of habeas corpus. 

 If a party objects within the allotted time to a Magistrate Judge’s report and 

recommendation, the Court “shall make a de novo determination of those portions of the report 

or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 

636(b)(1); See also Fed.R.Civ.P. 72(b). Upon review, the Court “may accept, reject, or modify, 

in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 

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636(b)(1). 

 For the following reasons this Court OVERRULES Petitioner’s objections (ECF No. 

25), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 23), GRANTS 

Respondent’s motion to dismiss and supplemental motion to dismiss (ECF Nos. 13 and 16), and 

DISMISSES this action. This Court also DENIES as moot Petitioner’s “supplementary 

reminder or judicial notice” and motion to mandate the state court to produce “certified trial 

records.” (ECF No. 27.) 

I.

 In her Report and Recommendation, the Magistrate Judge recommends that this action be 

dismissed as time barred by 28 U.S.C. §2244(d). (ECF No. 23 at Page ID #146-47.) The statute 

provides: 

(d)(1) A 1-year period of limitation shall apply to an application for a writ of 

habeas corpus by a person in custody pursuant to the judgment of a State court. 

The limitation period shall run from the latest of— 

 (A) the date on which the judgment became final by the conclusion of 

 direct review or the expiration of the time for seeking such review; 

 (B) the date on which the impediment to filing an application created by 

 State action in violation of the Constitution or laws of the United States is 

 removed, if the applicant was prevented from filing by such State action; 

 (C) the date on which the constitutional right asserted was initially 

 recognized by the Supreme Court, if the right has been newly recognized 

 by the Supreme Court and made retroactively applicable to cases on 

 collateral review; or 

 (D) the date on which the factual predicate of the claim or claims 

 presented could have been discovered through the exercise of due 

 diligence. 

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(2) The time during which a properly filed application for State post-conviction or 

other collateral review with respect to the pertinent judgment or claim is pending 

shall not be counted toward any period of limitation under this subsection. 

28 U.S.C. §2244(d). 

 In an order addressing a prior report and recommendation in this case, this Court 

sustained Ikharo’s objections to the statute of limitations pending the Supreme Court’s decision 

in Chaidez v. United States, 133 S. Ct. 1103 (2013). (ECF No. 12.) Specifically, the Court 

found that if the Supreme Court’s holding in Padilla v. Kentucky, 559 U.S. 356 (2010), applied 

retroactively to Petitioner’s challenge to his plea negotiations and guilty plea, this action could 

be rendered timely. Since the Court’s prior Order, however, the Supreme Court held in Chaidez

that Padilla does not apply retroactively to cases on collateral review. Chaidez, 133 S. Ct. at 

1113. Thus, Padilla does not apply to Ikharo. And because Padilla is not retroactive, the statute 

of limitations in this case is not governed by 28 U.S.C. §2244(d)(1)(C). Ikharo would have to 

qualify under either §2244(d)(1)(A),(B), or (D) for this petition to be timely. 

 Ikharo first argues that his petition is timely filed under §2244(d)(1)(A) because the Ohio 

Supreme Court did not render a final decision on his motion for delayed review until September 

5, 2012, making that the date on which the one year period would begin. This argument is not 

well taken. The statute of limitations does not reset when a motion for delayed review is filed. 

Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001). The filing might be able to toll the 

limitations period, but it cannot restart it. Id. In this case, however, the motion cannot act to toll 

the statute of limitations because the statute of limitations had already expired. Ikharo’s 

conviction became final on October 25, 1996, when the time to file a timely appeal with the Ohio 

Supreme Court expired. The limitations period to file a petition for writ of habeas corpus ran out 

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one year after that date, which was over ten years before Ikharo filed his motion with the Ohio 

Supreme Court. Ikharo’s petition is not timely filed under §2244(d)(1)(A). 

 Ikharo next argues that this Court should apply §2244(d)(1)(B) because he was deported 

by the Department of Homeland Security and therefore was prevented from timely filing by State 

action in violation of the Constitution or laws of the United States. Even if this Court were to 

assume that Ikharo would qualify for this provision based on his deportation, the statute of 

limitations would still bar this petition. Ikharo was not deported until October 18, 2010. (ECF 

No. 8 at Page ID # 88.) This means that no state impediment to filing would have existed at the 

time the statute of limitations expired in 1997. Ikharo’s petition is not timely filed under 

§2244(d)(1)(B). 

 Ikharo does not advance any arguments for the application of §2244(d)(1)(D) and the 

Court finds this provision inapplicable to the facts of the instant case. Because Ikharo has not 

filed this petition within the applicable statute of limitations as provided in 28 U.S.C. §2244(d), 

this petition should be barred as untimely. 

II.

 The Magistrate Judge further recommends that this Court grant DeWine’s motion and 

supplemental motion to dismiss because Ikharo was no longer “in custody” at the time he filed 

this petition. (ECF No. 23 at Page ID # 147-50.) Ikharo objects on the basis that he has been 

and is in custody because he was deported as a consequence of his conviction. 

 This Court finds that Ikharo’s objection is not well taken. As the Report and 

Recommendation states, Ikharo’s immigration status is a collateral consequence of his 

conviction, but it is not sufficient to satisfy the “in custody” requirement. (Id.) Ikharo fully 

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served his sentence and was released from State custody prior to filing this petition. His 

subsequent deportation does not render him “in custody” for the purposes of a petition for a writ 

of habeas corpus under 28 U.S.C. §2254(a) and therefore this Court lacks jurisdiction to consider 

Ikharo’s petition. 

III.

 Ikharo’s remaining objections do not speak to any of the grounds that form the basis of 

the Magistrate Judge’s Report and Recommendation, and therefore this Court need not address 

them. 

 For the reasons stated herein, this Court OVERRULES Petitioner’s objections (ECF No. 

25), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 23), GRANTS 

Respondent’s motion and supplemental motion to dismiss for lack of subject matter jurisdiction 

(ECF Nos. 13 and 16), and DISMISSES this case for lack of jurisdiction. Because this Court 

lacks jurisdiction and must dismiss the case, Petitioner’s “Supplementary Reminder or Judicial 

Notice” and motion to mandate the state court to provide “certified trial court records” (ECF No. 

27) is DENIED as moot. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

GREGORY L. FROST 

UNITED STATES DISTRICT JUDGE 

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